In 2015, the state water board appropriated an in-stream flow standard of 900 cubic feet per second on the Dolores River during spring, between the confluence of the San Miguel River and Gateway.
It is intended to support river health including three species of native fish: the flannelmouth sucker, bluehead sucker and roundtail chub.
The Southwestern Water Conservation District filed a legal challenge to the new minimum flow standard, arguing that the flows were too high and could not be met in drought conditions. They further claimed that Colorado Water Conservation Board improperly concluded it could not adopt a 1 percent depletion allowance on the in-stream flow to accommodate future developments as a condition.
But the Colorado water court rejected the lawsuit claims, and confirmed the newly designated in-stream flow for the Dolores in a ruling Thursday.
District Court Judge J. Steven Patrick said the water board has the authority to appropriate in-stream flows and that it followed proper procedures.
“The Court finds nothing in the record to support a finding that CWCB’s action was unreasonable,” the judge wrote in the decision. “The CWCB did not abuse its discretion in refusing to consider … the proposed depletion allowance.”
Environmental groups applauded the decision. Durango-based San Juan Citizen’s Alliance, Western Resource Advocates and Conservation Colorado had joined the water board in defending the board’s new Dolores in-stream flows.
“We believe this decision not only protects the beautiful Dolores River, but affirms the use of in-stream flow water rights as a vital tool to leave a legacy of healthy rivers throughout Colorado,” said Jimbo Buickerood, land and forest protection manager for San Juan Citizen’s Alliance.
The court ruling secures up to 900 cubic feet per second of water during spring peak flows, as well as essential winter flows, for a 33-mile stretch of the river. Environmentalists say the flows will help prevent at-risk native fish species from becoming listed as endangered or threatened under the Endangered Species Act. The river anchors a remote desert oasis and has plentiful recreation opportunities, they said…
The reach slated for the largest in-stream flow protection on the Dolores River is near the Unaweep-Tabeguache Scenic and Historic Byway between Gateway and Uravan, Colorado.
New in-stream flows are junior to existing water rights, but senior to future water right claims.
The Dolores Water Conservancy District also objected to the new Dolores in-stream flow, and urged that it should at least have a condition to allow for some future development needs. The district manages McPhee Reservoir and dam, which are upstream from the new appropriation.
During a previous hearing on the matter, DWCD attorney Barry Spear, said the proposed 1 percent depletion proposal was to “set aside an amount that the small water developer could use to keep the water in the state.”
The new in-stream flows for lower Dolores River begin below the San Miguel confluence are as follows: minimum flows of 200 cfs from March 16 to April 14; 900 cfs from April 15 to June 14; 400 cfs from June 15 to July 15; 200 cfs from July 16 to Aug. 14; and 100 cfs from Aug. 15 to March 15.
When the Stagecoach Property Owners Association was informed by the Colorado Division of Water Resources in summer 2017 that it was temporarily suspending the issuance of well permits in unincorporated Stagecoach, 18 miles south of Steamboat Springs, it caused a significant amount of distress.
Some homeowners in Stagecoach get their domestic water from the Morrison Creek Water and Sanitation District, but many others, with lots of 1 to 2 acres, rely on water wells.
With 2,300 platted building lots and only 400 of them developed, people were concerned that the moratorium might become permanent and de-value their properties. With the arrival of spring, most of those worries have been resolved, Stagecoach Property Owners Association President John Troka said.
Since last summer, the Colorado Division of Water Resources has studied the circumstances that led to the moratorium. Decades ago, neither property owners in some rural subdivisions here nor the Routt County Planning Department had been submitting water supply plans to the Colorado Division of Water Resources for its review and approval.
In the interim, the Yampa River above Steamboat Springs, as well as the entire length of the Elk River, have become over-appropriated, placing homeowners in rural subdivisions where they depend on wells for domestic water temporarily in limbo.
However, the Division of Water Resources studied the situation through autumn 2017, and State Engineer and Director of the Division Kevin G. Rein reached a solution intended to honor the rights of senior water rights holders and do as little harm as possible to people living in rural subdivisions. He sent his findings to Routt County Planning Director Chad Phillips in a lengthy memo dated Feb. 1.
Troka thinks the Division’s findings worked out as well as they could have for Stagecoach property owners.
“We put our lawyers on notice,” Troka said. “(The Division) could have drawn a hard line. This was a positive outcome for us. People in originally platted subdivisions out there can relax. Owners will be allowed to drill a well.”
What they won’t be able to do is irrigate their yards or gardens, nor will they be able to provide water to livestock. These restrictions will protect the rights of those senior water rights holders.
That’s not a big deal in Stagecoach where the large majority of people have natural yards, and as Troka pointed out, the property owners association rules forbid horses.
However, the story varies around the upper Yampa Valley. But for the present, there are far less concerns, because the Yampa in that stretch is not yet over-appropriated.
Say goodby to Green Acres?
Stagecoach wasn’t the only neighborhood in Routt County where rural subdivisions were confronted last summer with the suspension of well permitting. The same process was being applied to long-standing subdivisions in the upper Yampa Valley above Steamboat Springs and in the Elk River Valley.
The rub has to do with the fact that the waters in the Yampa River above the kayak feature in downtown Steamboat Springs, known as Charlie’s Hole, and the Elk River basin have been deemed over-appropriated. There’s no more water in the streams and rivers that isn’t spoken for.
The second issue is the Division’s recognition last year that there are rural subdivisions in Routt County in those watersheds where the Division has discovered that it never had the opportunity to review “water supply plans” required of many new subdivisions, depending on when they were approved. That means the potential to harm senior water holders was never adequately considered.
Routt County Planning Director Chad Phillips described the situation in a memo to the Board of County Commissioners.
“The regulations required an applicant wanting to subdivide land to provide proof of a dependable and potable water supply,” Phillips wrote. “The regulations laid out several ways an applicant could prove this. During the ’70s, ’80s and ’90s, staff did not send a referral to the Division for their covenants … because it was not required by the regulations.”
Kevin G. Rein, state engineer and director of the Division of Water Resources, wrote in his agency’s finding that in spite of the lack of the required water supply plans, the division will continue to issue well permits in the affected subdivisions “under limited conditions.”
The good news is that the division will resume issuing well permits in over-appropriated areas. The concerning news, for some, is that in certain cases the new permits will be limited to providing water for use within the home only. Using the water outside the home to water gardens or horses won’t be permitted, unless the property owners are able to arrange a contract leading to an “augmentation plan,” which would offset an outdoor use with stored water, for example, from another basin.
Division 6 water engineer Erin Light said the application of the Division’s findings varies from subdivision to subdivision.
And Rein’s memo to Phillips contains eight different scenarios about how Rein’s findings will be applied in different rural subdivisions, varying with circumstances like the layout of the subdivision and the configuration of the lots.
Rural property owners can read Rein’s findings for various categories of rural subdivisions in the appendixes at the bottom of his letter to Routt County, which is embedded in the online version of this news story.
Andrea Clark, Tom Kirkpatrick and Dana Black allege that Powderhorn bought a 1-cubic-foot-per-second winter water right that didn’t totally belong to the person who sold it to the resort. They also allege that removing more water from Mesa Creek in the winter will harm the other water users and worsen problems with the creek icing over, and that the ski resort can’t put the water it purchased to beneficial use at this time and bought the water rights on speculation.
The plaintiffs claim that Powderhorn should not be able to change the use of water it purchased from the Mesa Creek Ditch, which was formerly used during the winter for domestic and livestock purposes. The resort purchased the water from former Mesa Creek Ditch Association board president George Bevan.
According to court documents, Powderhorn intends to divert a maximum of 150 acre-feet of water during the winter, transport it to the H.U. Robbins Reservoir and store it there until it uses the water for making snow. The reservoir has a decreed capacity of a little more than 100 acre-feet of water and is located more than a mile from Mesa Creek, its source, according to state water records.
However, the plaintiffs allege that Powderhorn’s intent to use the water isn’t good enough — that the state’s requirement for water rights to be put to beneficial use should be applied here. In other words, they claim Powderhorn’s purchase of the water with no infrastructure for transporting it to its reservoir was speculative, which is not a legal use under Colorado law for those water rights. They also claim the resort’s reservoir needs significant repairs and has not been used for nearly 40 years, and that the resort hasn’t proved it can or will be able to transport or store the water.
Powderhorn’s attorneys claim the resort already proved the change in the water rights wouldn’t hurt any of the other water users and that Bevan owned and used the water he sold the resort for decades.
They also plan on calling Andy Daly, co-owner of Powderhorn, to testify that the water rights are necessary to have a reliable water source for snowmaking. This comes during a winter in which the resort didn’t open until the week before Christmas, snowpack levels are dismal and Powderhorn limited its operating days for weeks to keep its runs open with snow made by the resort.
Daly also plans on telling the court that Powderhorn will find one way or another to transport the water the 1.19 miles from Mesa Creek to its reservoir, though it does not have a way to do so currently, according to court documents.
“As for landowner access, Powderhorn can purchase, lease, or condemn the rights of way necessary to convey the subject water right to the ski mountain and H.U. Robbins Reservoir,” said the brief filed by the ski resort’s attorney, Glenn Porzak.
Other parties in the case include the Colorado Division of Water Resources and Ute Water Conservancy District, the largest domestic water provider in the Grand Valley. Ute Water became involved in the matter before the ski resort purchased the water in 2016, according to an agreement between the two entities that was signed by Ute’s board president at the time.
In the agreement, Ute Water agreed to not oppose Powderhorn’s application asking the state for permission to change the water right’s specified use to snowmaking. In exchange, Powderhorn offered shares of stock in the Mesa Creek Reservoir and Canal Co. and also said it would ask the state to let Ute Water have water that it bypassed and didn’t divert for snowmaking.
The plaintiffs are represented by Clark’s husband, attorney Jim French, who is handling the case pro-bono, and Isaiah Quigley, a Grand Junction attorney.
The case is set for a three-day trial in front of Chief Judge James Boyd in [
“Water was so important they put it in our Constitution, how water is to be divided in Colorado, and it works — still to this day — very well,” Yahn said, explaining that the way it works is the first people who go out and get the water and start using it are the first to have the right to use it.
Water rights are decreed in water court; for the South Platte River the water court is located in Greeley, and once they’re decreed the water rights can’t be changed, even by the legislature.
After ditch companies came and started pulling water off the river and irrigating with it there wasn’t enough water in the summertime in this area, but there was in the wintertime, so farmers grouped together and the legislature passed the Irrigation District Law of 1905.
“They made it so farmers could get into bigger groups and get bonding and things like that, so that they could pay for bigger systems,” Yahn said, explaining that’s what he manages: Prewitt Reservoir, which is 32,164 acre-feet, was built from 1910-1912, has a 30,000 acre service area, and has 250 owners, and North Sterling Reservoir, which is 74,590 acre-feet, was built from 1909-1911, has a 41,000 acre service area and has about 140 owners.
Water rights development in South Platte Basin was influenced by return flows.
“Way back when, you had not only fights within the state between farmers and miners and other farmers, but you also had other states that depended on that river,” Yahn said.
The South Platte compact was negotiated by Delph Carpenter and signed by Colorado and Nebraska in 1923. In a letter from Carpenter to the governor, he said the flow was excessive in May and June and disappeared entirely during the summer; the river frequently became dry for months of each year, to points as far west as the present city of Fort Morgan. He said the flow of return seepage waters coming back to the river from irrigation in Colorado lands had resulted in a constant supply at the interstate line.
“So, he wasn’t too concerned with this agreement that we were making with Nebraska to supply them water, because he said this flow was increasing and he said it soon will be efficient to take care of the full demands of both us and Nebraska,” Yahn said.
Ralph Parshall conducted a study in 1922 on the “Return of Seepage Water to Lower South Platte.” His findings included that return flows were increasing over time and continued to increase mostly due to the general rise of the water table. He said in some areas the water table would rise each year as much as 100 feet and noted the flow increases along the river from 2 to 8 ½ second feet per mile. He also said diversions from the river after spring floods had subsided were practically all from seepage water.
“So, he’s saying after the snowmelt heads out, there’s really no source of water except for these return flows that come back to the river,” Yahn said.
From 1930s to the 1970s, America got rural electrification and people realized there was groundwater under the ground, so they began drilling wells. In the 1950s and 1960s there were droughts, so farmers were looking for other sources of water and really went after wells along the South Platte River.
In 1956, Parshall told the Rotary Club there were several issues impacting the dwindling river. While past records had indicated a steady increase in return flow to the river, in 1956 it was found that the seepage return was practically nothing and Parshall said that was partly due to the fact that between Kersey and Julesburg more than 4,000 irrigation wells pumped to deliver enough water to fill Horsetooth Reservoir four times during the 1955 season, twice as much water as it would take to fill all the reservoirs in this area — North Sterling, Prewitt, Jackson, Empire, Riverside and Julesburg.
Parshall also said it appeared obvious that we couldn’t continue depleting the groundwater at that rate. From 1954 to 1956, North Sterling Reservoir either never filled or was just a little over half full. Records show a similar pattern in the 1960s.
“You can probably feel the tension already; you have these guys with reservoir water with a 1910 water right and you have wells that were drilled in 1950, pumping away and growing crops while these guys sit here with nothing, fields blowing…” Yahn said.
He spoke about how the river is administrated, using an example with the Springdale Ditch (1886 water right), Sterling No. 1 Ditch (1873 water right) and Harmony No. 1 Ditch (1895 water right).
“What happens is you have these ditches that seep and all this water … seepage from the ditch, people call it wastewater, it actually goes back to the river and somebody else down river uses it,” Yahn said. “So, the interesting thing is even though Springdale has an 1886 water right, if Sterling No. 1 doesn’t have all their water, they call up the river commission and say ‘hey, we don’t have our water, you need to bring it us.’ The river commissioner will call up Springdale and say ‘you need to shut off; Sterling No. 1 doesn’t have enough water.’ It’s a pecking order,” Yahn said.
In the 1950s, wells were put in and intercepted water that was going back to the river. All the sudden it became evident in the reservoir system that they didn’t get any water. So, Colorado made a way that you can replenish this well pumping if you put in some recharge ponds.
“It’s a good way to allow people to pump their well, but still not injure senior water rights,” Yahn said.
In 2002, which was a dry year, not all the wells were replacing very much and the return flows back to the river per mile from Kersey to Julesburg was around four CFS for every mile. In 2012, after wells were required to replace their water, the line jumped back to what Parshall said, showing that the return flows were finally back to what they used to be.
Water is going to become an even more precious resource in the coming years, as the population in the South Platte Basin is expected to increase from 2.5 million to 6 million by 2050, and new water demand will increase from 359,000 to 525,000 acre-feet.
“We have to deal with that with water and what we’re trying to work towards is ideas that keep people farming, because if you’ve ever gone down into the Arkansas Valley, in Rocky Ford or anywhere in southeast Colorado, where Aurora went down applied for the water, took it out, it just devastates the community. So, we’re trying to come up with alternative ways to keep farmers farming, try and get water for municipalities and work together so that we can do that,” Yahn said.
There are projects that are being worked, but even if all the projects are built there will still be a shortage of 99,000 acre-feet, which is about 1.5 North Sterling Reservoirs, and if just 62 percent of the projects are completed there will be a shortage of 362,500 acre-feet, which is about five North Sterling Reservoirs.
If SCOTUS holds in Texas v. New Mexico and Colorado that the United States has an independent cause of action under the Rio Grande Compact, it could open the door for the federal government to sue states for violating the terms of other interstate water compacts.  Depending on the scope of the ruling, it could either set a precedent for claims by the United States in other interstate water disputes or be narrowly limited to the facts of the case. Included at the end of this alert is a map showing all current interstate compacts.
From a practitioner’s perspective, the issues at the crux of Florida v. Georgia highlight the need for clear guidance from technical experts in determining priorities in complex allocations. Moreover, the decision will have implications for how SCOTUS may handle equitable apportionment in future water disputes, such as between Mississippi and Tennessee.  There is a dearth of recent case law on equitable apportionment, particularly in Eastern states; the last time SCOTUS equitably apportioned water between Eastern states was 1931, when it resolved a conflict between New Jersey and New York.  There also is a lack of precedent as to how the Court will treat considerations of ecological impacts in equitable apportionment. Whether the decision in Florida v. Georgia will provide clear insights into these issues remains to be seen, but if it does, it will certainly impact upcoming interstate water disputes.
The allocation of water from interstate compacts directly impacts the amount of water available to users within the party states. Thus, the outcome of these two cases apportioning water between and among states, and deciding the role of the federal government in that distribution, will have impacts across various economic sectors, including agriculture, power production, municipal water supply, food processing, technology manufacturing, and data storage, to name a few.
Texas and New Mexico are squaring off over water rights in a case before the U.S. Supreme Court, but the issues at the heart of the disagreement were settled in 2008.
Insert drought: for most of the past 20 years, this whole disputed territory has suffered a series of droughts. Elephant Butte has not regularly filled as originally planned, and farmers have turned to pumping groundwater to meet their needs.
Texas’ main argument in the suit is that groundwater pumping for irrigation wasn’t covered under the 1938 compact. Texas contends that the groundwater is essentially attached to the water in the Rio Grande and Elephant Butte Reservoir. River water is drawn into the ground in times of high pumping, and more water then needs to be released from the reservoir to reach the quota bound for Texas. But Texas says that water is meant to be stored for Texas farms in drought years.
None of this is new. In fact, after years of previous wrangling, the three players directly involved in the dispute – Elephant Butte Irrigation District, which manages water between the dam and the Texas border; El Paso County Water Improvement District, which manages water on the Texas side; and Bureau of Reclamation, which manages the physical water system – collectively created the 2008 Operating Agreement. That document clearly laid out water use and metering of both surface and groundwater along the disputed stretch.
“It wasn’t pleasant, I’ll be honest with you,” Gary Esslinger, Elephant Butte Irrigation District manager and treasurer, said of those negotiations. But in the end, both water districts felt they had a deal they could work with, and farmers could get on with farming.
Enter the State of New Mexico and then-Attorney General Gary King, who, in 2011, sued the Elephant Butte Irrigation District, El Paso County Water Improvement District and the Bureau of Reclamation in both state and federal courts. He argued that the Operating Agreement gave too much water to Texas. And in light of that, two years later, Texas began its Supreme Court fight.
“Make no mistake, we had it solved,” said Phil King, professor of civil engineering at New Mexico State University. He helped negotiate the 2008 agreement with Elephant Butte Irrigation District.
“We still think to this day that we might not be in the Supreme Court, had New Mexico not threatened the 2008 agreement,” Esslinger said.
The stakes are high. If New Mexico loses, the state could be penalized for misappropriated water as far back as the 1940s – a bill that could reach north of $1 billion. In addition, the state may have to allocate more of its water to Texas in the future.
Meanwhile, farmers continue to operate under the 2008 agreement. Also, the Elephant Butte Irrigation District, El Paso County Water Improvement District, Bureau of Reclamation and other, smaller water users in New Mexico’s lower Rio Grande Valley are in closed-door talks to try to hammer out another deal – one amenable to both states and that makes the Supreme Court case moot. New Mexico’s current attorney general, Hector Balderas, has also indicated he wants to settle the case.
“I’m really very optimistic that something will work out,” says John Fleck, the director of the Water Resources program at the University of New Mexico. But “however this gets resolved, there will probably be less water for farming in the lower Rio Grande.”
There is a new way to put water back in Colorado’s parched rivers.
After more than a year of back and forth with Pitkin County officials, the nonprofit Colorado Water Trust announced Tuesday a pilot agreement with a Carbondale rancher to increase streamflows in the Crystal River during dry years.
The three-year agreement will compensate Bill Fales and Marj Perry, who own the 600-acre Cold Mountain Ranch just west of Carbondale, for retiming their irrigation practices to leave water in the Crystal River when it needs a boost.
Although the Water Trust has spearheaded water leasing arrangements to benefit other rivers in Colorado, the Cold Mountain Ranch deal is the first to involve the timing of irrigation diversions.
For Zach Smith, a staff attorney for the environmental nonprofit Water Trust, the pilot agreement is an important test for whether this type of conservation program can work for ranchers and rivers.
“That’s great for the Crystal itself,” Smith said, “and it’s also great for the Water Trust as we try to figure out how to design projects for working ranches.”
Under the terms of the agreement, the Water Trust will monitor flows in the river and, if flows fall to 40 cubic feet per second (cfs), the ranch may voluntarily shift its diversion scheduling. The Water Trust will then measure the changes in the ranch’s irrigation practices and pay Fales and Perry $175 per cfs per day to encourage that shift. Once streamflows reach 55 cfs, the payments would cease.
The pilot agreement can restore as many as 6 cfs per day in the Crystal River for a maximum of 20 days in August and September (no other months are included), offering a maximum payout of $21,000 per year to Cold Mountain Ranch.
The new deal is the culmination of a multi-year effort to help boost streamflows in the Crystal River, which runs from the Elk Mountains above Marble to its confluence with the Roaring Fork River at Carbondale.
During the drought of 2012, demand for water outpaced supply and the Crystal went dry, prompting the Water Trust to look for new sources of water for the river’s benefit.
Although the Colorado Water Conservation Board has an environmental instream flow right on the Crystal, the water right dates from 1975, far lower in priority than the major agricultural water rights on the Crystal — and thus is of little to no use when the river most needs water.
The Water Trust began consulting with local ranchers and farmers whose senior water rights could be useful during times of drought, asking whether they would be willing to lease some of their irrigation water for the Crystal’s benefit. And many were.
However, most of them, including Fales, were wary of arrangements that involved too much bureaucracy. So the Water Trust devised a more flexible deal, requiring no filings in water court.
Fales was the first to volunteer. He offered to let some of his water rights from the Helms Ditch, which dates from 1899, for the Crystal’s benefit and assumed Pitkin County would be on board, as well. (The county co-owns a conservation easement on Cold Mountain Ranch and had to approve the deal with the Water Trust.)
Instead, the rancher found himself embroiled in a frustrating disagreement with Pitkin County officials who insisted that Fales’ willingness to forgo some of his water when the river needed a boost would put his water rights at risk.
For John Ely, the Pitkin County attorney, the biggest problem was that if Fales kept producing the same amount of alfalfa with less water, his water rights could one day be diminished in water court under the “use it or lose it” principle. This was especially concerning to Ely because the county had paid $7.5 million for the conservation easement on Cold Mountain Ranch.
“If you’re preserving agricultural property, you’re not preserving much if you don’t have the water that goes with it,” Ely said.
The new arrangement addresses the county’s concerns. Instead of reducing his annual water use, Fales will simply shift the timing of his diversions to align with the Crystal’s needs.
The end result, Smith said, will bring the same environmental benefits for the river without affecting Cold Mountain Ranch’s water rights.
What’s more, the pilot agreement marks the first step toward implementing the Crystal River Stream Management Plan, released in 2016, which helped quantify the ecological needs of the river. And it means Pitkin County can finally fulfill its long-stated goal of putting more water in local rivers through the Healthy Rivers and Streams program.
For Smith, the process of working out this kind of arrangement also has broader lessons for other water conservation efforts involving conservation easements. Back in 2012, the Water Trust thought it had a leasing agreement that could be rolled out in different river basins throughout Colorado. Now, Smith said, he’s learned that what works in one community might not work for another.
“We need to be flexible,” he said.
Editor’s note: Aspen Journalism is covering rivers and water in collaboration with The Aspen Times, Glenwood Springs Post Independent, Vail Daily and Summit Daily News. The Times and the Post Independent published this story on Wednesday, Jan. 24, 2017.
Here’s the background from Sarah Tory writing for Aspen Journalism:
Bill Fales is a self-described “sucker for experiments.”
The soft-spoken, unassuming 64-year-old grows alfalfa on his 600-acre ranch just west of Carbondale. For 45 years, Fales has irrigated the fields of Cold Mountain Ranch with water from the Crystal River, which flows 35 miles from its headwaters in the Elk Mountains to the Roaring Fork River.
In spring 2016, the Colorado Water Trust, a Denver-based nonprofit devoted to improving river health, announced a new water conservation initiative to ranchers in the Crystal River valley. Fales was eager to jump on board.
It sounded simple enough: The Water Trust would compensate any ranchers willing to leave some of their irrigation water in the Crystal River to boost flows during dry times. In 2013, Colorado had passed a law protecting water rights registered in conservation programs, and Fales assumed his interest would be met with approval.
Instead, the rancher found himself embroiled in a bewildering disagreement with Pitkin County officials who insisted that Fales’ willingness to forgo some of his water when the river needed a boost would put his water rights at risk.
Why, Fales wondered, was it so hard to do something he thought was good?
Wary of bureaucracy
Cold Mountain Ranch is one of the few remaining working ranches in Pitkin County, and Fales always felt protective of the land’s open space and agricultural value. To protect his property from development, he sold a conservation easement on the entire ranch in 2009 to Pitkin County and the Colorado Cattlemen’s Agricultural Land Trust. Under the terms of the easement, the water rights that came with the ranch could not be sold separately from the land.
When it came to water conservation initiatives, however, the West’s system of private water rights often clashed with environmental priorities. That was true of the Crystal River valley, as well. When the Colorado Water Trust first put out the call to local farmers and ranchers in 2012 — a dry year — asking if they would be willing to lease some of their water for the river’s benefit, most of them, including Fales, were wary of the bureaucracy involved in the arrangement.
“It took away your whole ability to make decisions — they’d come and shut off your headgate at one of two predetermined dates,” he said.
Still, Fales knew that ranchers and farmers — and their senior water rights — had an important role to play in helping the Crystal, especially during times of drought.
The Colorado Water Conservation Board (CWCB) has an environmental instream flow right on the Crystal for 100 cubic feet per second from May 1 to Sept. 30 and for 60 cfs from Oct. 1 to April 30. The water right dates from 1975, far lower in priority than the major agricultural water rights on the Crystal — and thus of little to no benefit. During drier years, the river regularly drops well below 100 cfs.
Since most ranchers in the Crystal River valley were uninterested in a formal water-leasing arrangement offered by the state, the Water Trust devised another more flexible option, requiring no filings in water court. The arrangement allowed irrigators to let water flow past their headgates to benefit the Crystal’s flows during dry periods.
When the Water Trust advertised the program to ranchers in the Crystal River valley in spring 2016, Fales was the first to volunteer. They settled on a target flow of 40 cfs, which the recently completed stream management plan showed was an important indicator for river health and also a realistic goal for ranchers.
Fales planned to use his water right on the Helms Ditch, which includes an original right for 2.93 cfs with an appropriation date of 1899 and an enlargement right for 3.07 cfs dating to 1924. He irrigates about 100 acres with the water right.
If the river fell below 40 cfs, Fales would decide if he could turn off the headgate for a short period of time and in exchange, the Water Trust would pay him $175 per cfs of water left in the river per day.
Fales isn’t sure how much water he would be able to leave in the river, as it depends on the time of year and his irrigation demands.
However, an application for “approval of a water conservation program” prepared in December 2016 in anticipation of it being submitted to the Colorado River District, which has the ability to approve such programs, did set parameters on the effort. It said Fales could choose to leave up to 6 cubic feet per second of water in the river at a time, for up to 45 days between July 1 and Sept.30, and up to 535 acre-feet a year overall.
The application says “the exact amount of water in any year to be conserved will vary based on Cold Mountain Ranch’s discretion, river calls, and hydrologic conditions.”
The draft application, which was never formally submitted to the River District, has a footnote observing that “the River District recognizes the precise quantification of water savings may be difficult or impossible” and that “estimates and a description of the method of estimation are sufficient.”
Whatever amount of water is left in the river would flow downstream for at least two miles without a chance of it being diverted by another structure.
And Fales hopes that after a week or two of his not diverting water, other irrigators might step up and turn down their headgates, too, so that collectively they could help the river without causing undue burden on any one rancher.
For Fales, volunteering for the program felt important in another way, as well.
“Putting our head in the sand is not a solution,” he said. “If we don’t come up with something ourselves, the state will tell us what to do or the Front Range will come knocking.”
One of three irrigation ditches that delivers water from the Crystal River to Bill Fales’ Cold Mountain Ranch. Fales owns some of the most senior water rights on the river, which he hopes he can use to help improve its flow during dry periods.
Confusing signs from county
In fall 2016, Fales presented his proposal to reduce his water for the purpose of boosting flows in the Crystal River to the Colorado Cattlemen’s Agricultural Land Trust and Pitkin County officials, who both have a stake in the conservation easement on his ranch. The land trust offered a few amendments, but was otherwise on board. Pitkin County, however, was less enthusiastic.
“I thought they’d give me a big kiss and a hug,” Fales said. “They have their Healthy Rivers and Streams program whose goal was to put water back in the river — which they’ve never done — and now we’d finally be able do that.”
Unbeknownst to Fales, the county had become increasingly protective of agricultural water rights on properties with conservation easements — especially the county attorney, John Ely, the architect of Pitkin County water policy.
He saw all sorts of interests pulling at the Western Slope’s water, from climate change to dramatic growth along the Front Range to Colorado’s legal obligations to deliver a certain amount of water from the Colorado River to other states like Arizona and California. There also was Colorado’s own water laws, which encourage water to be used — anywhere. Already, water from Pitkin and Garfield counties’ Roaring Fork River was diverted hundreds of miles across the mountains to Aurora and Colorado Springs.
“We clearly recognize that if water rights disappear from here then our land has a real possibility of drying up and the water will be used somewhere else,” Ely said.
For Ely, senior agricultural water rights protected much of the county’s water from getting diverted over the Continental Divide. The flip side, of course, is that the agricultural diversions are drying up sections of these rivers.
Still, when it came to water rights, Ely did not want to take any risks — even small ones. Although the conservation easement on the Cold Mountain Ranch allows the owner to temporarily reduce their water for the purpose of maintaining or improving streamflows, Fales’ proposal with the Water Trust was too informal for Ely’s taste.
Under state water law, only the CWCB has the authority to keep water destined for the environment in the river, but Fales and the Water Trust had bypassed the state in crafting their agreement.
Ely feared that another water user would claim the water Fales left in the Crystal. And he worried, too, that if Fales kept producing the same amount of alfalfa with less water, his water rights could one day be diminished in water court under the “use it or lose it” principle. This was especially concerning to Ely because the county had paid $7.5 million for the conservation easement on Cold Mountain Ranch.
“One of our central concerns was once the water was in the river there was no mechanism to keep it there,” Ely said. “If you’re preserving agricultural property, you’re not preserving much if you don’t have the water that goes with it.”
In response to Ely’s concerns, Fales and Zach Smith, the Water Trust lawyer who put together the Cold Mountain Ranch proposal, solicited the input of various environmental organizations and water policy experts to find out if the water Fales left in the Crystal would help the river.
And crucially, was Fales imperiling the Cold Mountain Ranch water rights that Pitkin County had invested in?
Smith and Fales received responses from Trout Unlimited, the Aspen Valley Land Trust, and the Colorado Division of Water Resources.
All of those contacted were in favor of the proposal and saw no problem with regard to Fales’ water rights and his making an application to the River District seeking approval for it.
“Once approved by the River District the plan will protect the Helms Ditch right from abandonment, diminution of historical consumptive use, and any assertion of waste,” Alan Martellaro, the Division 5 engineer at the Colorado Division of Water Resources, wrote in an email to Ely on January 11, 2017. “I believe the application is a simple, good first step toward balancing agricultural and ecological river needs in the Crystal River valley desired by the Water Trust and Bill Fales.”
Meanwhile, Fales, Smith, and Pitkin County officials began meeting to try to resolve their disagreements over the proposal. John Currier, the chief engineer at the Colorado River District, attended one of the meetings.
“I don’t think it’s risky at all from a water-rights protection perspective,” Currier later said. He conceded, however, that someone could, in the future, argue that Fales had been wasting his water if he continued to grow the same amount of alfalfa with less water. The risk, he said, was remote.
The whole ordeal has left Fales feeling frustrated and confused.
“We’re supposed to be one of the most environmentally minded counties, so to say to farmers that they should maximize their diversions is really bizarre,” he said.
In search of a new arrangement
Fales, the Water Trust, and Pitkin County officials continued to meet in the hopes of resolving their differences about the Cold Mountain Ranch proposal. After all, they wanted the same thing: more water in the river.
Although they’re still sorting out the details, Fales, Ely, and the Water Trust are optimistic the new arrangement will satisfy both parties: Instead of reducing his water use, the Water Trust will pay Fales to coordinate the timing of his irrigation diversions with the river’s needs so that he turns down his headgate when the Crystal is running low and back on again when the river is flowing well.
Dale Will believes a successful agreement could ripple throughout the area. Will is acquisition and special projects director at the Pitkin County Open Space and Trails program, and the program’s former director.
“That’s why everyone is focused on Cold Mountain Ranch,” Will said. “Not because Bill [Fales] by himself can solve the problem, but because if they can make his proposal work, they can expand it to our other agricultural land.”
Editor’s note: Aspen Journalism is covering rivers and water in collaboration with the Glenwood Springs Post Independent, The Aspen Times, the Vail Daily, and the Summit Daily News. The story was published on Tuesday, Jan. 2, 2017 by the Post Independent and The Times.